4th issue :

whether teenager consented to have sexual

intercourse, the penetrator will be guilty for the
offence under Section 375 of PC ie rape which is
punishable under Section 376 of Penal Code(PC) ?
Section 375 PC
• Define Rape : act done by a bilogical man against the victim(women)
regardless of the emotion at the time where sexual intercorse is done
either with (c)- (g) or without consent (a) & (b)
• Actus reus : Sexual intercourse and those under subsection a-g
• Mens rea : silence but indicate must be done voluntarily (s.39)
• How to prove rape : Prosecution need prove that there is penetration
made by the defendant(man) against the victim(woman) as it is
sufficient to constitute sexual intercourse under Explanation to
section 375 . So no need to prove there is emission of semen
Riduan Bin Masmud v Public Prosecutor
FACTS :defendant had rape a girl aged 12 years in a car

HELD : there was fresh tear on her external genitalia and need not
prove that there is complete penetration by referring to explanation to
s.375 due to law required to prove penetration and not ejaculation.
who is consider as “teenager” in Malaysia?
• not define in any statutory provision
• refer to the data stipulate by UNICEF, aged between 10 years to 19
years old is consider as teenager
 A. age of 10 - 16 years old
• offender had sexual intercourse with teenager who is below 16 years old with or without consent, it will be
regard as statutory rape

Pendakwa Raya lwn Muhamad Fikri bin Mahmood

Rape : involve some force
Statutory rape : involving the sexual intercourse done against the minor ie below 16 years old without violence

• how to prove statutory rape?

sexual intercourse done was within the meaning of limb g of s.375 ie rape is done against victim under aged of 16
years regardless with or without consent and

• Punishment :
if convicted will be liable for imprisonment not less than 10 years but not exceed 30 years and with whipping
under s.376(2)(d).
Mohd Aminurdin bin Ahmad v Public Prosecutor
FACTS : appellant had rape the victim aged 15 years old after brought
the victim to various place
HELD : punishable under s.376(2)(d) and not s.294 of CPC as sexual act
is not consented and involved the element of assault ie injury due to
appellant act.

Nor Afizal Azizan v PP (CONTRAST CASE)

FACTS : appellant, aged 19 years had committed statutory rape victim, aged
13 years

HELD : since victim had consented and no violence was involved thus,
punishable under s.294 of CPC ie have good behavior for 5years and fine
RM25K instead of punishable under s.376 of PC due to public interest.
B. Aged of 17 - 19 years old
• Consider as rape and not statutory rape
how to prove ?
• prove that either the victim did not consented stipulated in limb (a) and (b) of
s.375 or did consented as stipulated in limb (c) to (f) of s.375.

confusion between section 375(a) & (b)

• limb a : against will
• limb b : without consent

Queen Empress v Gopala

act done “against her will” is also act done without her consent but not vice
versa as the expression means that the act is committed despite opposing by
the woman.
Ahmad Faizal Ali bin Aulad Ali & Ors v PP
FACTS : where one of the appellants was charged with s.376 and s.377C
for raping and carnal intercourse done against the victim aged 19 years
HELD:
1. prove beyond reasonable doubts that it was done within the ambit
of s.375 ie it was done without consent (a) or against his will(b) and
there were not husband and wife and
2. proved that there is penetration as she felt the pain when the penis
entered into her private part
3. liable under s.376 ie imprisonment extend to 20 year with whipping
and s.377C imprisonment not less than 5years but not exceed 20
years with whipping.
 WHETHER OFFENDER CAN RAISE DEFENCE IF THEY
RAPE MINOR ?
They can raise defence such as
i. mistake , section 79
 accused must prove that the mistake was mistake of fact and not mistake of law
 satisfy section 52, done in good faith where he has done it with due care and attention

ii. consent , section 88 - If know it is likely to cause death/grievous hurt, but there is consent, with good faith, with
benefit forthe person, but WITHOUT intention,
 accused must prove that the consent was obtained before the sexual intercourse
 condition to raise consent under section 87
 Prosecution can rely on s.90 that consent is invalid that is given under fear of injury, or under a misconception of
fact or a person is unsoundness of mind or intoxication or consent is given under twelve years of age (include male
and female)

iii. duress , section 94

 accused is doing an act which is not of his own wills , place himself in a situation that became the subject to threat and there is
reasonable apprehension of harm to himself as no opportunity to escape
 Prosecution will relied on Explanation 1 to section 94 to prove on beyond reasonable doubts that there is no imminent danger to
accused life and did join mafia and accused will prove on balance of probabilities it is no.